Cases in other jurisdictions are cited by him to the effect that if it had been the intention of the parties to transfer a fee interest more apt language would have been used. On the other hand, in Barnett v. Barnett, 117 Md. 265 [ 83 A. 160, 162, Ann.Cas 1913E 1284], it was held that the words "absolute control" transferred a fee interest, and in Welsh v. Gist, 101 Md. 606 [ 61 A. 665], it was held that the words "full control" also vested a fee interest. Accordingly it would seem that the words "whole control" in the present document are not so free from ambiguity as to prevent the court from resorting to extrinsic evidence to ascertain their meaning.
) "The phrase 'full control' when unqualified, of necessity implies complete domination," ( Welsh v. Gist, [101] Md. [606], 61 A. 665, 666). In Boyles v. County Court of Barbour County, 116 W. Va. 689, 182 S.E. 868, the court considering "An act . . . . providing, for state control of alcoholic liquors" said:
The word "control" has various significations, depending on the circumstances and connection in which it is used. 2 Words Phrases 1549; 1 Idem (2d Ser.) 1021. The word may be so used as, with the context, to imply and confer complete dominion and ownership, with the consequent power of disposition. Welsh v. Gist, 101 Md. 606 ( 61 A. 665). Of itself, however, the word is ordinarily the equivalent of "manage," "direct," "govern," "supervise," as conferring the usual power of a trustee, and, with respect to real property at least, without power of disposition. Bramell v. Cole, 136 Mo. 201 (37 S.W. 924, 58 Am. St. 619); Randall v. Josselyn, 59 Vt. 557. (10 A. 577); Wolffe v. Loeb, 98 Ala. 426 (13 So. 744).
Maryland, however, has long adhered to the doctrine that an "heir is never to be excluded on mere conjecture." Welsh v. Gist, 101 Md. 606, 611, 61 A. 665 (1905). Although a parent can disinherit a natural child, McGarvey v. State, 311 Md. 233, 238, 533 A.2d 690 (1987) (quoting Besche v. Murphy, 190 Md. 539, 549, 59 A.2d 499 (1948)), the implication that the parent meant to do so "must be obvious, and not merely possible or probable; for the title of the heir at law being plain, no words in a will ought to be construed in such a manner as to defeat it, if they can have any other signification."
Cases in other jurisdictions are cited by him to the effect that if it had been the intention of the parties to transfer a fee interest more apt language would have been used. On the other hand, in Barnett v. Barnett, 117 Md. 265 [ 83 A. 160, 162, Ann.Cas. 1913E 1284], it was held that the words `absolute control' transferred a fee interest, and in Welsh v. Gist, 101 Md. 606 [ 61 A. 665], it was held that the words `full control' also vested a fee interest. Accordingly it would seem that the words `whole control' in the present document are not so free from ambiguity as to prevent the court from resorting to extrinsic evidence to ascertain their meaning.
Francis I clearly intended to create a terminable interest. He did not devise an estate generally or indefinitely, with power to dispose, as was the case in Welsh v. Gist, 101 Md. 606, 61 A. 665 (1905). Mrs. Crawford's interest lasted only until death or remarriage, with a power to divide between named remaindermen, who would otherwise take undivided interests in the whole.
In cases of repugnancy where the words and clauses cannot stand together and have effect, the subsequent must prevail as denoting a subsequent intention. Hollins v. Coonan, 9 Gill. 62; Manning v. Thruston, 59 Md. 218; Welsh v. Gist, 101 Md. 606, 610, 61 A. 665; Pattison v. Farley, supra; Carey v. Dykes, 138 Md. 142, 146, 113 A. 626. In the case of Pattison v. Farley, supra, the testator devised and bequeathed absolutely unto his wife all of his estate, both real and personal, during the term of her natural life, together with all the appurtenances to the said estate belonging, to have and to hold the said estate in her own absolute right for life. The court in that case held that the wife took a life estate only and not an absolute fee, and at the expiration of her life estate, the testator died intestate.
The title, estate, and interest of the grantor as owner in fee simple of the realty and absolutely of the personally conveyed and assigned in trust to a trustee, and then as an equitable life tenant of the trust estate created, with a power of testamentary disposition over the corpus of the trust, are as successive and separate as though the grantor and life tenant were different persons; and, in the absence of fraud, must be here so regarded in the application of the principles of law relative to these titles, estates, and interests. And, similarly, the donor and appointor are to be treated as if they were distinct individuals. Brown v. Renshaw, 57 Md. 67; Farlow v. Farlow, 83 Md. 118, 34 A. 837; Nevin v. Gillespie, 56 Md. 320; Benesch v. Clark, 49 Md. 497, 504; Conner v. Waring, 52 Md. 724; Foos v. Scarf, 55 Md. 301, 310; Albert v. Albert, 68 Md. 352, 372, 12 A. 11; Ridgely v. Cross, 83 Md. 161, 34 A. 469; Welsh v. Gist, 101 Md. 606, 608, 61 A. 665; Cook v. Councilman, 109 Md. 638, 72 A. 404; Marden v. Leimbach, 115 Md. 206, 80 A. 958; Beranek v. Caccimaici, 157 Md. 144, 145 A. 369. The appeal of Fisher v. State, 106 Md. 104, 66 A. 661, is not a refutation but an illustration of the application of the position taken by this dissent.
"This distinction, while it has been said to be a refined one, is, nevertheless, as well established as any in the law; and judges and text-writers alike recognize and adopt it as a principle too firmly settled to be questioned." Foos v. Scarf, 55 Md. 310; Mines v. Gambrill, 71 Md. 35; Smith v. Hardesty, 88 Md. 390; Welsh v. Gist, 101 Md. 608; Roberts v. Roberts, 102 Md. 147; Marden v. Leimbach, 115 Md. 206, 210; Brandau v. McCurley, 124 Md. 250. The remainder to the daughter was not made contingent either by its being subject to a precedent equitable life estate in the mother, since the possibility that the remainder may never take effect in possession is immaterial; or by the granting to the daughter of a power whose exercise might terminate her life estate.
"This distinction, while it has been said to be a refined one, is, nevertheless, as well established as any in the law, and judges and text-writers adopt it as a principle too firmly settled to be questioned. Anon. 3 Leo. 71; Tomlinson v. Dighton, 1 P. Wms. 149, 171; Bradley v. Westcott, 13 Ves. 445, 453; Jackson v. Coleman, 2 John. 391; Jackson v. Robbins, 16 John. 587, 588; Flintham's Appeal, 11 S. R. 23, 24; 1 Sugd. on Pow. 122-126; 4 Kent, 535, 536." See also Foos v. Scarf, 55 Md. 310; Bentz v. Md. Bible Society, 86 Md. 115; Numsen v. Lyon, 87 Md. 41; Roberts v. Cobb, 89 Md. 165; Welsh v. Gist, 101 Md. 606; Welsh v. Davis, 125 Md. 37, in which the above stated principle of law has been recognized and followed. In Benesch v. Clark, supra, where the property was given and devised to the wife "to have and to hold * * * for her benefit, maintenance and comfort during her life," the court held that she did not take a fee simple title to the property, as it was expressly stated and clearly shown by the will that she took but a life estate with the power of disposition annexed.